Op-ed Column - Watertown Public Opinion

By Tim Gebhart
for the Watertown Public Opinion

Why the current debate in the state Legislature over public records?
Journalists and others may point to specific instances but the core issue
arises from the seeming simplicity of our current law. It provides that if a
state law requires a public officer to keep a record or document, it must be
³available and open for inspection by any person during normal business
hours.² Initially enacted in 1935, problems exist because of what the
statute fails to say and the broad exceptions to it.
For example, there are countless documents public offices retain that they
may not be required to by statute. Why is that significant? Because last
year the South Dakota Supreme Court ruled that if a statute doesn¹t require
a record to be kept, it isn¹t open for public inspection.
As for exceptions, another statute says the law does not apply to records
specifically stated to be confidential or secret by the laws requiring their
keeping. As a result, exceptions are scattered throughout the state¹s laws
without specifically mentioning particular records and there are no specific
exceptions or guidance in the public records act itself.  While the Attorney
General¹s office recently created a ³South Dakota Records Catalog² listing
the types of records maintained by state and local government and whether
those records are public or not, no specific avenue exists for review of a
refusal to allow inspection of documents.

Two bills currently under consideration try to resolve those problems,
although with slightly different approaches. Watertown¹s Sen. Nancy Turbak
Berry has introduced a bill that starts simply and explicitly:  ³Except as
otherwise specifically provided by law, every record of a public entity is a
public record, open and accessible for inspection during reasonable office
hours.² A bill sponsored by Sen. Dave Knudson of Sioux Falls takes a
slightly narrower view: ³Any record or document required by state or federal
statute, ordinance, administrative rule, permit, or license to be filed with
or kept by any government entity or any elected or appointed government
official shall be open to public inspection during normal business hours.²
(Disclosure statement: Sen. Knudson is one of my law partners.)
While both bills allow other statutes to exempt records from inspection,
they do address whether material contained in other records can be
considered confidential. Knudson¹s bill identifies specific types of
information that cannot be disclosed. Turbak Berry¹s bill requires certain
criteria be met before information can be withheld. Yet both recognize that
allowing inspection of a record by redacting confidential information is
permissible.
Finally, both bills provide avenues of redress. Knudson¹s bill would allow a
person requesting a record to seek review by an administrative law judge if
informal and formal requests for the record have been denied. Turbak Berry
places the burden on the custodian of the record or a person claiming to be
adversely affected by its release, allowing them to seek a court order
preventing or limiting inspection of the record.
No one would contend that every piece of information collected or kept by
government should be open to anyone. Certainly, private health or financial
information shouldn¹t be considered public information. Likewise, businesses
have a right to protect proprietary information. And regulatory and law
enforcement agencies shouldn¹t be required to reveal files in an ongoing
investigation. Yet this illustrates the difficulty in finding the proper
balance between access and privacy in crafting a public records law.
Where there is little difficulty is recognizing that South Dakota¹s current
law is outdated. Despite their differing approaches, Turbak Berry, Knudson
and the other sponsors of these bills are to be commended for taking on the
challenge of fixing it. Individual philosophy undoubtedly leads to critics
of each bill. The important thing is to pass legislation that actually
eliminates some of the current gray areas and increases the likelihood of
public access and greater government accountability.

Tim Gebhart is a 1974 WHS graduate who is an attorney at Davenport, Evans,
Hurwitz and Smith, L.L.P. of Sioux Falls. Before attending law school he was
a reporter for United Press International and the Rapid City Journal.